ZGram - 2/10/2004 - "The Crown vs Zundel: 'Can't tell you! National Security!'"

[zgrams at zgrams.zundelsite.org]

ZGram - Where Truth is Destiny:  Now more than ever!

February 10, 2004

Good Morning from the Zundelsite:

February 9, 2004 will probably go down in history when Canada was 
finally revealed for all to see as a police state in the universally 
despised Soviet Show Trial tradition where the Accused insists on 
being innocent and begs for evidence he can refute that he is 
"guilty" - and Ivan smirks at the Accused while fingering the Red 
Star, telling him:

"But you don't get it!  You don't get it!  I do not have to prove 
your guilt to you - YOU have to prove your innocence to me!"

I described this scene in my first ethnic novel, The Wanderers, 
published in 1977 - almost two decades before I ever met or even knew 
about Ernst Zundel.

Last night, it was impossible for Ernst to call me and give me some 
indication of how the day in court played out.  The first summary 
came to me this morning in Paul Fromm's astonishing report below.


[START]

Subject: CAN'T TELL YOU -- IT'S A SECRET

by Paul Fromm


TORONTO, February 9, 2004.

Who lobbied CSIS to get rid of Zundel?

Can't tell you - national security.

Who authored the report calling him a terrorist?

Can't tell you -  national security.

Did the Minister of Immigration who'd gone on the record denoucning 
[zundel] for making a "mockery" of Canada's refugee protection give 
directions to CSIS?

Can't tell you; national security.

Today was the day any pretence of fairness in the hearing into the 
reasonableness of a Canadian Security and Intelligence Service (CSIS) 
national security certificate alleging that German-born publisher and 
Canadian political prisoner Ernst Zundel slipped away like the last 
pastie from a tired sleaze club stripper. Former Solicitor-General 
Pierre Blais, then boss of Canada's spy force and now the judge in 
the Zundel case, ran repeated interference to shelter CSIS spokesman 
Dave Stewart from answering defence lead counsel Peter Lindsay's 
questions.

	Lindsay himself became the object of the bench's attack, 
being alternately denounced for appearing "nervous", for being on a 
"fishing expedition" and for "wasting the Court's time" for asking 
questions. At times, the imposing and lanky Lindsay, his diminutive 
wife and partner Chi-Kun Shi, ever scouring the voluminous files and 
transcripts to assist him, and the balding, pale publisher, his 
prison trousers held up with a necktie, seemed like a beleaguered 
trinity of battlers against an encircling state.

The Crown and judge had both been privy to numerous secret hearings 
and witnesses, and every effort of the defence to elicit information 
on the process followed by Canada's political police was thwarted by 
the barrier of "national security" erected by Crown attorney Donald 
MacIntosh and rubber stamped "sustained" by Mr. Justice Pierre Blais.

	The emotionally tense day began badly. In a ruling delivered 
Friday afternoon, Mr. Justice Blais had rejected Mr. Lindsay's motion 
for an adjournment of proceedings pending the decisions of several 
courts of appeal on appeals filed in this case. Mr. Lindsay sought 
clarification of the judge's ruling.

Mr. Justice Blais had ruled: "This Court was the proper forum for 
hearing constitutional challenges."

"Is Your Lordship of the view that constitutional challenges can 
still be brought before Your lordship?" Mr. Lindsay inquired.

	"This Court entertains constitutional issues. Unfortunately, 
you were not here in November. The Crown argued that this Court does 
not have jurisdiction. I cannot comment on that. A decision was made 
by your Client to go to another court," the judge responded, 
referring to Mr. Zundel's habeas corpus motion to the Superior Court 
of Ontario. "I will not comment on my decision. It was never put to 
this Court to get a clear answer. My decision speaks by [sic] 
itself." So, Mr. Lindsay would be left guessing as to what would be 
proper procedure.

	Crown Attorney Donald MacIntosh added to the spirit of 
"We-know-but-we-won't-tell-you" churlishness. "In my respectful 
submission, you shouldn't answer this question," he urged the judge. 
"This Court shouldn't be providing Mr. Zundel with legal advice."

	Mr. Lindsay next asked: "Have there been any more secret 
proceedings since we last me?"

	"No," Mr. Justice Blais, sporting an ultra short new 
crew-cut, answered. "There's nothing mandating that I should mention 
it, but as a courtesy I always tell you if there was. If I have a 
legal obligation not to tell you, I would have no legal obligation to 
tell the parties." The judge's comments were seen to be disingenuous 
as the Crown is in on all the secret hearings and witnesses. Only Mr. 
Zundel, his counsel and the public are excluded.

	CSIS spokesman Dave Stewart is rail thin. Throughout the day 
he was asked to leave the court no fewer than 15 times. His 
"exercise" was occasioned by frequent Crown objections to Mr. 
Lindsay's questions and the need to hear these arguments with the 
witness excluded. Indeed, Mr. Stewart's first stint on the stand 
today lasted all of two questions.

	Referring to a four-page summary prepared by CSIS for Mr. 
Zundel's detention hearing before the Immigration and Refugee Board, 
February 28, 2003, Mr. Lindsay asked: "Who prepared this particular 
summary?"

	"Objection," Crown counsel Donald MacIntosh said.

	Mr. Stewart was ordered to leave the room.

	"It's a corporate document prepared by CSIS in support of the 
Minister. It has no relevance to know which individuals prepared this 
document," Mr. MacIntosh argued. The Crown counsel worried that Mr. 
Stewart may be led to reveal classified information.

	Not for the first time, the judge coached the witness on his 
return. "Mr. Stewart, before you answer the question, I remind you of 
your obligation about classified information."

	As to the authors of the document, Mr. Stewart responded: "I 
don't know."

	"Who in CSIS would know?" Mr. Lindsay queried.

	"Objection., It's not relevant," Mr. MacIntosh interrupted.

	"The answer is very clear: he does not know," Mr. Justice Blais said.

	Again, Mr. Stewart took a compulsory trip out of the courtroom.

	"My previous question was 'who prepared this document?" and 
it was ruled proper," Mr. Lindsay said. "The witness said he didn't 
know. Surely, it's proper to learn who might know in order for us to 
get the best evidence."

	"It's a bit of a fishing expedition," the judge snarked.

	"I'm not limited in my cross-examination to what is in those 
five volumes of documents," a visibly angry Mr. Lindsay shot back. 
"I've never heard that in cross I'm not allowed to conduct a fishing 
expedition.  I had to fight to get this one witness. If I knew what 
was in the secret evidence, I would not have to ask these questions", 
he added.

	Maintaining the claustrophobic dust closet of secrecy that 
has fallen over what is becoming a police state in Canada, the judge 
ruled: "It will not serve the interest of justice to disclose the 
names of people at CSIS or the RCMP involved in preparing this 
document."

	A frustrated Mr. Lindsay asked: "I just want to understand. 
If I present any CSIS document, am I not allowed to ask who wrote or 
prepared it?"

	Adopting the lordly "What I have written I have written" 
pose, the judge responded: "I will not comment on my own decision. 
Don't ask me to comment on it. I have decided that my January 6 
ruling applies. This question is not acceptable."

	Mr. Stewart trooped back into the courtroom.

	"Was this document prepared by employees of CSIS?" Mr. 
Lindsay inquired.

	"That's correct," Mr. Stewart answered.

	"Was anybody else involved in its preparation?" Mr. Lindsay continued.

	"Objection. It's not relevant," Mr. MacIntosh objected.

	Again, Mr. Stewart was directed to leave the room while a 
legal wrangle ensued. When he returned, the judge coached him: "I 
again remember [sic] you of your obligation under national security 
not to disclose the names of CSIS or RCMP employees."

	As to others involved in preparing the report, Stewart said: 
"I don't believe so."

	"It may be yes, it may be no," Mr. Lindsay pursued.

	"Yes," Mr. Stewart conceded.

	"Is there anyone at CSIS who would know?" Mr. Lindsay asked.

	"Objection," Mr. MacIntosh said.

	Once more Mr. Stewart took a trip to the outer foyer.

	"It's not relevant. In my respectful submission, this is a 
corporate document," Mr. MacIntosh insisted.

	"I'm trying to get to the best evidence. To the extent that 
Mr. Stewart wasn't able to comment on the preparation of this 
document, perhaps there are others who can," Mr. Lindsay argued.

	"Pursuant to my decision of January 6, I will maintain [sic] 
the objection," the former CSIS boss ruled.

	Mr. Stewart was recalled. "Do you know for a fact that the 
Department of Justice had any input into this document," Mr. Lindsay 
asked.

	Department of Justice lawyer MacIntosh was on his feet. "Objection!"

	Mr. Stewart took another walk.

	The defence lead counsel was now in for a dressing down from 
the judge. "Mr. Lindsay, I think you miss my point. Whether other 
federal agencies were involved is not pertinent. You're entitled to 
ask questions, but you're asking about the fabric of this document. 
It doesn't matter. You're wasting the time of this Court. We're going 
nowhere. You're trying to get indirectly what you can't get 
directly," the judge said.

	"To be brutally frank, I don't have to telegraph where I'm 
going," Mr. Lindsay told the judge. "I've never in my life been told 
how to cross-examine. We've been here 45 minutes because every 
question I ask has been objected to."

	"It's not relevant," came the chorus from Mr. MacIntosh.

	"The objection is maintained [sic] on the basis of the 
January 6 decision," Mr. Justice Blais intoned.

	In the next round, Mr. Lindsay was able to ask a few 
questions before the Crown objected.

	"Was this document carefully prepared to be accurate?" Mr. 
Lindsay asked.

	"Yes, I believe so," the CSIS spokesman answered.

	"Was it prepared to be fair?" Mr. Lindsay continued.

	"I don't know what the word 'fair' means," Mr. Stewart replied.

	Again, Mr. Lindsay asked: "Is this document accurate?"

	"I don't know," the CSIS witness admitted.

	After the morning break,. Mr. Lindsay directed the witness's 
attention to the five green-bound volumes of support material for the 
two May 1 summaries of the CSIS case against Mr. Zundel. "Does CSIS 
have any evidence of Mr. Zundel advocating violence or terrorism in 
literature he sent out?"

	The Crown objected.

	"Surely, there can't be a question of classified material in 
literature Mr. Zundel publicly sent out."

	Again, Mr. Stewart headed for the door. "I'm asking whether 
CSIS has evidence of Mr. Zundel advocating violence or terrorism in 
literature he sent out. I don't see how his own literature that he 
sent out can be considered 'classified' material. I'm entitled to a 
clear answer not muddied up by 'classified,'" Mr. Lindsay said.

	"It's not obvious to me whether it would be classified or 
not. It's possible some literature going out from Mr. Zundel over the 
years could be classified," the judge opined. "I don't know."

	When Mr. Stewart returned, Mr. Lindsay asked: "Apart from a 
1981 Toronto Star article, does CSIS have any other evidence of Mr. 
Zundel advocating violence or terrorism in literature he sent out?"

	"I can't recall," was the CSIS spokesman's response.

	"Without asking about the content of any classified 
information, are you saying CSIS has evidence of Mr. Zundel 
advocating violence in his literature? I'm not asking for names or 
dates or particulars," Mr. Lindsay explained.

	"Objection," said Murray Rodych CSIS special counsel, now 
taking over the objection duties from Donald MacIntosh. Once again, 
Mr. Stewart left the room, while his legal defenders stymied the 
defence lawyer.

	"It's a slippery slope," Mr. Rodych argued. "It's getting 
into the mosaic effect, where an informed reader can deduce 
information about CSIS. It goes to the whole question of national 
security. Just confirming or denying might lead to inferences about 
investigative techniques, searches and surveillance."

	"I know the evidence classified and non-classified in this 
case," the former CSIS boss ruled. "I have no hesitation in saying 
the answer to this question would be injurious to national security 
or the safety of any person."

	When Mr. Stewart returned, Mr. Lindsay asked: "Does CSIS have 
any evidence of Mr. Zundel advocating violence on the Zundelsite?"

	"I don't believe so," Mr. Stewart replied.

	"Presumably, if there were such evidence, it would be deemed 
to be important and would be in the summary," Mr. Lindsay continued.

	"That is a fair assumption," Mr. Stewart conceded.

	Referring back to the CSIS summary presented at the February 
28 detention review hearing, Mr. Lindsay asked: "There's a section 
about Mr. Zundel's activities in Canada. Would this be a summary of 
CSIS's concerns about Mr. Zundel's activities in Canada up to 
February 28?"

	"Some of the concerns," Mr. Stewart hedged.

	"Is there one word about Mr. Zundel or violence in Canada? It 
is mostly about his mailing out literature," Mr. Lindsay said.

	"No there is not," Mr. Stewart admitted.

	It had become clear that Ernst Zundel's crime is political. 
It is his literature and ideas, not violence or terrorism, that 
concern the Canadian authorities.

	An ancient Toronto Star article from 1981 reports 
breathlessly of raids by West German police on hundreds of people 
smeared as "neo-Nazis". In the course of the raids, literature from 
Ernst Zundel was found. This article has been a key part of the CSIS 
case.

	"Did CSIS bother to point out whether Mr. Zundel faced any 
charges in West Germany as a result of the distribution of this 
material?" Mr. Lindsay asked. "Does it matter to CSIS that Mr. Zundel 
was charged and ***acquitted for the distribution of this 
material?***"  [emphasis added]

	There were Crown objections and the judge purported to be 
mystified by the question.

"I'm entitled to probe how careful and fair CSIS is. It will be my 
submission that CSIS [has] thrown some mud, but doesn't present the 
bottom-line facts."

	"You're looking for inferences that are not made," Mr. 
Justice Blais said defending his old employees at CSIS. "This is 
self-serving. He's not an expert. This is a political question based 
on an allegation that is not made."

	"The government made reference to a particular incident. Mr. 
Zundel is bad, it said. See there. All this literature seized. But 
there was a trial and an acquittal. Yet, CSIS doesn't say he was 
charged and acquitted. This is relevant in determining the quality of 
the information presented to the Minister," Mr. Lindsay argued.

	"I will not accept this question," the judge ruled. Later, 
further protecting the CSIS spokesman, Mr. Justice Blais blasted Mr. 
Lindsay: "I'll not tolerate that you be condescendent [sic] to the 
witness. I'll not let you lecture the witness. He's been 
co-operating."

	"Your Lordship should not be making positive comments about 
the witness while he's on the stand," Mr. Lindsay countered.

	In a dramatic conclusion to a stormy day, the Crown and judge 
stymied defence efforts to learn the extent of Jewish lobbying of 
CSIS. "Do any of the contents of the May 1 summary come from Jewish 
groups seeking the removal of Mr. Zundel from Canada? "M. Lindsay 
asked.

	"Objection! National security," Mr. MacIntosh said. Mr. 
Stewart again trekked to the door.

	An incredulous Peter Lindsay pointed out that the April 30 
CSIS summary -- a non-classified document -- quoted a report from the 
League for Human Rights of B'nai Brith. "How can this be 'national 
security'?" he demanded.

	"It's an improper question," the dogged MacIntosh replied. 
"He cannot ask for the source of CSIS's information or who those 
sources are. His question is designed to elicit in camera material."

	When he returned to the witness box, Mr. Stewart said: "I'm 
not sure I can identify which groups are calling for Mr. Zundel's 
removal from Canada."

	"Are you aware that B'nai Brith called for Mr. Zundel's 
removal from Canada?" Mr. Lindsay asked.

	"I don't know," Mr. Stewart responded,

	"Have representatives of CSIS met with representatives of 
B'nai Brith in reference to Mr. Zundel?" Mr. Lindsay probed.

	"Objection," snapped Mr. MacIntosh.

	"There's evidence of Jewish groups calling for Mr. Zundel to 
be removed from Canada," Mr. Lindsay answered.

	Once more the stifling blanket of alleged 'national security' 
was drawn over the proceedings. "It's injurious to national security 
to enter the domain of the methodology of CSIS. I will not allow 
that," Mr. Justice Blais ruled.

	Mr. Lindsay then entered a binder of articles and press 
releases about Mr. Zundel. He referred to a B'nai Brith press release 
from February, 2003. The press release reported a meeting between 
B'nai Brith President Frank Dimant and the Minister of Immigration 
where the Jewish lobby group sought Mr. Zundel's removal from Canada. 
"This group is in close contact with the minister who signs the 
certificate. It's appropriate to know whether this group is in 
contact with CSIS, who prepares the report for this same minister," 
Mr. Lindsay said.

	"Are you aware of contacts between the minister and B'nai 
Brith in 2003?" the defence counsel asked.

	"I'm not," Mr. Stewart replied.

	"Are you aware of contacts between CSIS and B'nai Brith in 2003?"

	"Objection," said Mr. MacIntosh, leaping to the defence of 
the lobbyists.

	"Sustained," came the predictable ruling.

	"Are you aware of directions given by the Minister of 
Immigration to CSIS?" Mr. Lindsay asked.

	Again, Mr. MacIntosh objected. "It could be injurious to 
national security. It could be injurious in terms of CSIS 
methodology."

	"The Globe and Mail of February 20, 2003 said Immigration 
Minister Denis Coderre was 'furious' when he learned Mr. Zundel had 
returned to Canada and had made a 'mockery' of Canada's refugee 
system," Mr. Lindsay responded.

	"Using the politically correct catch-all term, Mr. MacIntosh 
argued: "It's not appropriate to ask that."

	"Based on previous decisions about national security, this 
question is not acceptable," the former CSIS boss and Ottawa insider 
ruled. "Objection is maintained [sic]."

-- Paul Fromm

=====

The Zundel Defence Fund Needs Your Help Today
	November and December have been very expensive months for the 
Zundel case. We have spent just over $50,000. Yes, part of this was 
to bring the Lindsays up to speed in the case. We had six court dates 
-- four in federal court and two in Superior Court in Ontario for a 
habeas corpus motion. Ernst Zundel, of course,  spent Christmas in 
prison. January was a expensive month, with four days planned in 
Federal Court --  January 22, 23, 26, and 37. Added to than was an 
appeal in Federal Court to be heard January 28.

	The Defence Fund is very seriously depleted and we face major 
outlays in the February. I again ask for your commitment and urgent 
help. Please mail us your contribution today or e-mail us your VISA 
number and expiry date.

	We have a number of delicate colour-pencil sketches by Ernst 
Zundel done in prison. Each is dated and signed. Each is a nature 
study. Mr. Zundel has long been a paint and sketch artist. He had 
returned to his love of art  before the U.S. I.N.S picked him up and 
deported him. He has done a number of new and beautiful designs, 
including Stonehenge and oak leaves. All donors of $100 or more will 
receive one of these sketches. Mail your donation today to CAFE, Box 
332, Rexdale, ON., M9W 5L3, Canada or e-mail us your VISA number and 
expiry date. On your cheque or an accompanying piece of paper, note: 
"For Zundel Defence Fund."